Ottawa’s proposed victims’ rights bill distracts from the real crisis in Canadian justice, and promises yet further regress.

Many of us had hoped the recent Speech from the Throne would herald a new direction in justice and corrections. Sadly, it was not to be. The emphasis on a proposed Victims’ Bill of Rights, in particular, is not simply a distraction from the real crisis in Canadian justice, but also holds the promise of yet further regress.

The real crisis lies in the congestion and delays in our courts, together with the crowding in our prisons and remand centres, which threaten our capacity to respect fundamental principles of justice and Charter-guaranteed protections. It is time for Canada to recognize, as have the U.S. and several European countries, that the old “war on drugs” and “tough on crime” approaches have proven both costly and ineffective.

What we need instead is to develop a less expensive, evidence-based and more effective means of addressing crime. But instead of embracing the more sensible and inventive approaches being tried elsewhere, every indication is that the Canadian government will continue to toughen sentences and correctional regimes as part of its plan to make victims’ rights the centre of the criminal justice system.

Victims’ rights certainly have an immediate, intuitive appeal. Just, effective, and humane responses to the causes and consequences of crime in society must include helping victims of crime. Many of our offices at the John Howard Society offer services for victims, restorative justice programs and measures aimed at preventing victimization. Certainly victims of crime should have access to trauma services and compensation for their losses. We hope these measures are incorporated in the promised Victims’ Bill of Rights.

The problem, however, with the planned Victims’ Bill of Rights is its announced commitment to “restore victims to their rightful place at the heart of the justice system” and to put the “rights” of the victims before the rights of the accused. This threatens to roll back more than 500 years of progress in criminal justice.

It was the hallmark of the primitive legal systems of the ancient world and medieval Europe that the wrongdoer and the person harmed stood at “the heart of our justice system.” All injuries, whether accidentally or intentionally inflicted on people, were answered by vengeance, usually delivered by the victim or victim’s family. The revenge of victims was seldom just, inspiring renewed vengeance by the criminal against the avengers. In this barbaric system of victim against victim, European justice degenerated into a chaos of vendettas.

The answer was to convert vengeance into a system of fines to be paid by the criminal or the criminal’s family for each type of injury. Criminal law was still a system of victim’s vengeance, though at least now it had some structure. But any idea of justice was missing, since it is clearly immoral for people to pay blood money to buy off their victims for the wrongs done to them.

One of the greatest innovations of the criminal justice system was the realization that the wrongful injuries people inflict are primarily offences against the public moral order represented by the Queen, not just particular harms to individuals in a given situation. The notion of crime as a moral affront to be answered by a public trial rather than a private feud, and as an offence to public value rather than to private interests, divides primitive from modern justice.

The present government’s plans for victim-centred justice forgets this lesson of history and threatens a slide back into a new dark age where victims’ vengeance poses as justice.

Charter rights ensure fairness in how liberties are denied by the state to the person accused of crime. Victims have legitimate interests in how the state responds to crime, compensates their injuries and addresses their needs, but their liberties are not imperilled by the criminal justice process. Proper concern for victims should never trump the just rights of the accused against the power of the state.

The Throne speech signals a radical change to our criminal justice system that places victims and their “rights” ahead of current fundamental principles of justice. Both James A. Gumpert, a prosecutor from Nova Scotia speaking for the Canadian Bar Association, and Steve Sullivan, former federal victims’ ombudsman have already raised concerns about this approach.

Do we really want to displace the Queen from her role at the heart of our justice system, roll back Charter rights for those facing a loss of liberties and return to medieval legal practices in the hope that this is the best way to help victims?

Catherine Latimer is executive director of the John Howard Society of Canada.

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